Ellis Island photo.jpgHindsight, the armchair pundits say, is 20-20.  The year 2013 has proven them wrong.

The end-of-year’s rear-view mirror onto the world of U.S. immigration shows impenetrable fog.  Unsurprisingly, as filmgoers know, vapory views of the recent past tend to diminish the apparent significance of events occurring early in the year (“never has a film released in July won an Oscar“).

So how did a year that began with such thunder for comprehensive immigration reform (CIR), and that culminated in the mid-year passage of a massive reform bill in the Senate, end with such a thud? Chronicler Aura Bogado ably and graphically recounts key immigration events of 2013 that show how CIR ultimately died in the House.

A chronological description of events, however, reports what happened but not necessarily why.  For that, no matter how daunting the task, NationOfImmigrators is at your service, hereby conferring its 2013 IMMI Awards.  

Just as in years past (2010, 2011 and 2012), the rules are the same:  There are no rules.  These awards are merely one immigration insider’s  opinions formed from the outside — before, during and after a recent trip to Ellis Island (it had only partly reopened five weeks earlier after suffering damages from Hurricane Sandy).  Our national immigration monument, quite fittingly, is a substantial remove from Foggy Bottom and environs, the epicenter for most of the year’s action and inaction.  

Modest Effrontery.  For all his huffing and puffing about taking action this year on CIR, President Obama seemed like just another old wheezer who bloviated at his teleprompter while failing to blow the House down.  He deserves kudos and an IMMI, however, for his decision to reach into his executive powers and extend the remedy of Parole-in-Place to undocumented immigrant relatives of military personnel.  If only he’d shown more verve and expanded the class of PIP beneficiaries. Too bad as well that he had to fib to hecklers that he lacked the power to stop deportations.  But at least the annual pace of removals is down by 10% and we will not be awarding the “Deporter in Chief” IMMI this year. Maybe he should receive an IMMI for Illegal Reentry Prosecutor of All Time.   Let’s wait and see how he earns new stripes in 2014.

Profiles in Dithering.  The IMMI goes jointly to House Speaker John Boehner (who knew full well that the bipartisan votes to pass the Senate’s CIR bill were there in the House but lacked courage to bring it to a vote) and to Tea Party Republicans (TPRs) in the House (who let kowtowing to their Districts prevail over patriotism, the nation’s interest, and the welfare of the GOP).   At least Speaker Boehner has shown some spine of late in confronting his TPR wing on fiscal and other matters and hiring the former immigration policy advisor of the Gang of Eight’s John McCain.

Devouring One’s Own.  The IMMI goes to advocates for immigration reform who began attacking one another in social and traditional media over tactics (some labeling the stratagems as publicity stunts and others describing them as classic civil disobedience) while losing sight of the overarching need for CIR and creating head fakes to move the eyes of the public away from all temporizing in the House. 

Judges Got to Be Free.  The Board of Immigration Appeals (BIA) shares this IMMI with the Immigration Section of the Federal Bar Association (FBA).  The BIA receives it for demonstrating repeatedly that despite their members’ unfortunate positioning as Justice Department employees who report to the Attorney General rather than truly independent jurists, they can and do rule on the law against the federal government regularly.  See, e.g., Matter of Douglas, 26 I&N Dec. 197 (BIA 2013)(child citizenship rights); Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)(rights of incompetent respondents); and Matter of Lee (E-2 spouse’s statutory right of employment authorization without need to apply for a work permit). The FBA Immigration Section earns the IMMI because it developed an extensive proposal for an independent immigration court no longer yoked to one party to the controversy, and secured the approval of the FBA Board of Directors to adopt as its formal policy on issues/advocacy an “Article I Immigration Court” proposal which can now be considered by Congress as part of CIR.  Honorable mention goes to the Immigrant and Refugee Appellate Center which has dutifully indexed unpublished BIA immigration cases for all to see.

Private, Off-the-Shelf Organization.  Epitomizing lawlessness in government, this IMMI is conferred in recognition of Oliver North’s observation during the Iran-Contra Affair that then-CIA Director Casey had a “private, off-the-shelf organization” to run covert operations in lieu of nation’s own spy agency.  The IMMI goes to the self-aggrandizing adjudicators at one or more regional service centers and at consular posts abroad who take the law into their own hands, concoct new extralegal evidentiary and procedural requirements, and deny requests of individuals and firms who deserve to receive the immigration benefits they seek.  The prime 2013 examples are the snitches who instigated a Homeland Security Department, Office of Inspector General (OIG), investigation of USCIS Director Alejandro Mayorkas through Sen. Charles Grassley  – an investigation assailed for its partisan and ham-handed methods by Judiciary Committee Chair, Patrick Leahy.

Lifetime [of] Achievement.  This IMMI goes to USCIS Director Alejandro Mayorkas (since confirmed as Deputy Secretary of the Department of Homeland Security) who achieved more than any previous Director of USCIS or Commissioner of the legacy agency, Immigration and Naturalization Service, in my 35+ year lifetime as an immigration attorney.  A lawyer’s lawyer, Mr. Mayorkas transformed the agency from a DHS backwater to a leader in public engagement and customer service, vastly improving stakeholder outreach, policy articulation, technological resources, and the speedier delivery (and concomitant reduction in backlogs) of new and existing benefits programs, while maintaining the integrity of the immigration system and allowing his agency to serve as a welcoming beacon to immigrants and nonimmigrants, petitioners and beneficiaries alike.  Mr. Mayorkas never veered from his duty to make sure that all cases are decided solely on the facts and the law, without fear or favor.  While we often disagreed, I know he will be sorely missed and that his salutary legacy will be felt for decades.

Rush to Pre-Ordained Judgment.  The IMMI is awarded to the DHS OIG for its recent report on the USCIS’s administration of the EB-5 Immigrant Investor “Regional Center” program.  The OIG has long packaged immigration baloney, while claiming to produce an objective and impartial study of a particular government program or practice.  This new EB-5 report, if it is to be swallowed, should likewise be slathered liberally with mustard or another masking condiment of choice.  The report focuses on the gripes of low-level officers, interviews no one outside of government, largely disregards the views of senior EB-5 program leaders at USCIS, and ignores multiple improvements to the adjudication of regional center cases and enhancements to promote consistency, detect and prevent fraud and promote the program’s mission of job creation (well documented in the accompanying memorandum of USCIS Director Alejandro Mayorkas).  It suggests, preposterously, that USCIS lacks legal authority to revoke a regional-center designation request based on fraud or national-security grounds, and that USCIS should study the program’s effect on job creation (even though such a study is clearly outside of the agency’s mission).  To be sure, the EB-5 program would benefit from greater regulatory clarity and closer liaison with the SEC and Commerce Department as the OIG proposed.  But it is as if this new OIG report essentially studied an old pre-op photo of a patient revealing an aquiline snout, disregarded the marvelous post-op results of rhinoplasty, and concluded that the patient has a big, ugly nose.  Clearly, the OIG has a nose for baloney; but it should not be given credibility as a pretext to eliminate the valuable EB-5 program.

DOMA’s Wake and Post-Mortem.  This IMMI goes jointly to the Supreme Court for invalidating most of DOMA (the Defense of Marriage Act) in U.S. v. Windsor, and to the federal immigration agencies (USCIS and the State Department) that quickly responded by according equal treatment under the immigration laws to same-gender bi-national couples as have long been enjoyed by heterosexual spouses.

Immigration Champions.  The IMMI goes to the American people (documented and otherwise), from all walks of life and every political persuasion, who are way ahead of their government leaders in supporting immigration reform and to countless advocates who have protested, marched, attended Town Halls, been arrested, wrote letters to editors, visited Congress and the White House, convened forums, tweeted, blogged, found bittersweet humor, argued that immigration is “one of [the] biggest civil rights issues” of our time, and screamed to the rafters that the time is now to fix our dysfunctional system. It also goes to Pope Francis who has spoken widely on the plight of immigrants as well as to those who make the religious and moral case for immigration reform, and to all the think-tanks and studies that showed CIR would dramatically benefit our economy, create jobs and improve the lot of all who reside in America.

Best Random Immigration Quote.  The IMMI goes to the fashion retailer Louis in Boston for the quote emblazoned on its stairwell wall: “We create boundaries only to trap ourselves within them.” View image.

No More Traffic.  The IMMI goes to the coalition of people, groups and agencies who have resolved that trafficking in humans must end.  

Perp Walk Blooper.  For insensitivity to cultural differences despite a shared ethnicity, the IMMI goes to the otherwise impressive Preet Bharara, the U.S. Attorney for the Southern District of New York. The Indian government and many of its people challenge his justification for the post-arrest strip search of Indian consular officer, Devyani Khobragade, who claims full diplomatic immunity from visa fraud charges based on her status as adviser to India’s permanent mission to the UN. Whatever the merits of the visa fraud charges, the U.S. should not undermine its adherence to diplomatic immunity, a privilege from prosecution which protects our diplomats abroad as much as foreign diplomats in the U.S. charged with crimes.

Jackboot Welcome.  This IMMI goes to the U.S. Customs and Border Protection officers at the JFK port of entry who obliterated a permanent resident’s livelihood by destroying his collection of musical instruments apparently claiming they were agricultural products.

We’re not from DC – We Get It.  Kudos and an IMMI go to the cities, states and regions that recognize the value of immigrants as contributors to their communities.  Their welcome mats are out and, without waiting for Washington, they are taking tangible steps to be more inviting to the foreign-born while full-throatedly talking devolution.

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That’s it for this year’s IMMI awards.  Maybe next year’s top IMMI will go to Congress if it finally moves ahead to enact comprehensive immigration reform legislation.  We can only hope. Stay tuned.